Cutler v. State

• Citation: 138 P. 1048,15 Ariz. 343
• Decision Date: 28 February 1914
• Docket Number: Criminal 348
• Parties: S. R. CUTLER, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

138 P. 1048

15 Ariz. 343

S. R. CUTLER, Appellant, v. STATE, Respondent

Criminal No. 348

Supreme Court of Arizona

February 28, 1914

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

The appellant was charged with the commission of the crime of rape upon one Valera Mills, a female child under the age of seventeen years, and was convicted. He appeals from the judgment of conviction, from an order refusing a new trial and from an order denying his motion in arrest of judgment. The prosecutrix's mother testified that her daughter Valera was born June 21, 1896. The prosecuting witness made her home with her mother at Nineteenth avenue south, in Phoenix. The mother's name is Alice Yerrick. The father of Valera is dead, and the mother has married again. On the evening of May 16, 1913, the prosecuting witness, Valera Mills, in company with Grace Wilkinson, met this defendant at a little candy store. The defendant talked to both girls for a time. Drinks of soda water were served, and they talked on general subjects. After they got through drinking, the two girls and defendant started to East Lake Park. At Washington street they saw Mr. Canning, the probation officer, and ran. Then defendant conducted the girls to his (defendant's) room. When they arrived at the room Bob Berry was there. The defendant got three bottles of beer and some sandwiches. After disposing of the beer and sandwiches, which took about an hour, Valera and defendant went into another room, and the door was shut between the two rooms. While in the room with the door shut the defendant had sexual intercourse with the witness Valera twice. At one time while the defendant was having intercourse with Valera, Grace Wilkinson entered the room. When these acts were accomplished, the defendant and Valera returned to the other room, where they had left Grace Wilkinson and Bob Berry. The proprietor of the rooming-house objected to the presence of the girls in the house, and demanded accused to get them out. Thereupon defendant conducted the two girls to a room in another part of the city. The girls undressed and went to bed at the last-mentioned room. Later defendant came, and he was admitted, and he undressed and occupied the same bed with the two girls, when the defendant again had sexual intercourse with Valera Mills.

The cross-examination of Valera Mills brought forth the facts That the witness had resided in Phoenix with her mother Alice Yerrick, for four years. That during that period she had been confined at the Crittendon Home for fallen women for three days, through the instrumentality of Mr. Canning, the probation officer. That since the date of the alleged offense, and before the trial, the witness had seen and talked to Mr. Canning two or three times, but he had not discussed the facts of the case with witness. He had told witness at one of these times that she was going to the reform school. That witness first told Mr. Adams what took place between herself and the accused. In the course of the cross-examination this witness was repeatedly addressed as "Miss Mills." In the course of the cross-examination of the witness Grace Wilkinson, the counsel for the accused invariably referred to the prosecutrix as "Mis Mills." Other facts are sufficiently stated in the opinion.

The appellant assigns the following as grounds for reversal of the judgment:

(1) "The court erred in permitting the witness . . . Grace Wilkinson to testify on direct examination, over defendant's objection, that she received notes from defendant in response to those written by her to him."

(2) "The court erred in permitting . . . Grace Wilkinson to testify on direct examination, over defendant's objection, that a certain paper note was sent to her by defendant."

(3) "The court erred in not instructing the jury to disregard certain remarks of the county attorney at the close of his argument to the jury, which remarks were prejudicial to appellant."

(4) "The court erred in overruling defendant's motion for a new trial on the grounds that there was a fatal variance between the information and the evidence."

Mr Benton Dick, for Appellant.

Mr. G. P. Bullard, Attorney General, and Mr. Leslie C. Hardy, Assistant Attorney General, for Appellee.

OPINION

CUNNINGHAM, J.

The first and second assignments of error are without merit. The prosecution asked the witness Grace Wilkinson the question, "Did you receive any notes which were responsive to and referring to the notes which you sent to this defendant?" Defendant objected, and the objection was overruled, and the witness answered, "I did." The witness was shown a paper and asked to state whether or not "that is responsive to any note sent by you to the defendant." To this defendant objected, the objection was overruled, and the witness answered, "Yes, sir." The contents of the note or paper were then offered, an objection interposed, and the evidence rejected by the court. The questions and answers were preliminary to and bearing upon the admissibility of the evidence about to be offered, and addressed to the court. The jury is not concerned with the question of the admissibility of the evidence offered. The appellant has received no injury when, as here, the questions and answers bearing upon the admissibility of an item of evidence is received by the court for the information of the court, when the court rules with the party objecting, and excludes the evidence concerning the admissibility of which the questions were asked and the answers given. The jury is concerned only with the evidence that is admitted by the court for their consideration and not with the rules of law entitling the evidence to be admitted.

The accused did not go upon the witness-stand, nor offer any witnesses in his behalf.

The county attorney in his closing address to the jury stated, "That neither of the two men who took these girls to the room has denied it." An immediate objection was made to this statement, and the court promptly instructed the jury as follows: "The fact that the defendant does not testify in the case should not be taken against him. It is improper for an attorney to comment on that. The fact that he does not do that shall never be taken as evidence against him." The county attorney, addressing the jury, denied that his remarks implied a comment upon the fact that the defendant did not testify as a witness. The defendant's counsel complained that the county attorney's last remark to the jury was in effect the repetition of the former objectionable comment, with which the court agreed. The county attorney then stated, "I have no right to comment that no one went on the witness-stand; no one was put on the witness-stand to deny a single sentence these girls testified to before you." Defendant objected to the statement "that no witness has taken the stand to deny what these girls said," for the reason it means that the defendant did not take the stand. To this objection the county attorney replied, "Do you think if it was not so he would not bring some witnesses here to swear to it?" To which statement and argument the defendant promptly objected, and the court ordered the exceptions entered. This proceeding of the county attorney is made the basis for the third assignment of error.

Paragraph 1112, Revised Statutes of Arizona of 1901, as amended by section 1212 of the Penal Code of 1913, reads as follows: "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself, but may be a witness in his own behalf. . . . His neglect or refusal to be a witness in his own behalf cannot in any manner prejudice him, nor be used against him on the trial or proceedings."

It is clear that the county attorney in making the first statement that provoked an objection from the defendant viz., "That neither of the two men who took these girls to the room has denied it," had reference to the defendant and Bob Berry. After the court instructed the jury that the fact that the defendant does not testify in the case should not be taken against him, and the court warned the attorney in the presence of the jury that it is improper for him to comment on the fact that the accused had not testified, the county attorney speaking to the jury denied that he had made any statements that could be considered a comment upon the failure or neglect of this defendant to testify in his own behalf. With this statement and explanation of the meaning which the former statement was intended to carry, the county attorney wished the jury to understand his former statement; that statement was directly limited by the county attorney to the failure of the defendant to offer any witnesses (evidently referring to Bob Berry, his roommate) to deny the fact that defendant and Berry took the girls to the room. The counsel for defendant so understood the explanatory statement of the county attorney. The statement in explanation was immediately charged as "practically the same thing" repeated, and the objection was made that "he [the county attorney] has no right to comment on the other man." The court agreed to this proposition by answering "Yes" as his ruling. The county attorney was seemingly provoked by the objection and the ruling of the court, and in a spirit of surprise and inquiry said: "I have no right to comment that no one went on the witness-stand; no one was put on the witness-stand to deny a single sentence these girls testified to before you." To the words, "that no witness has taken the stand to deny what these girls said," the defendant objected for the reason the statement indirectly means that the defendant did not take the stand. To this objection...